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Show 796 Wisconsin in which it is used, and a good illustration is the use by the Wiscon- sin court of the term "navigable." For the purpose of determining whether the State acquired title to the beds of navigable streams or lakes at the time of admission to statehood, the Federal test of what constitutes a navigable body of water must be applied. The United States Supreme Court is the final arbiter of this question.4 To the extent that some earlier Wisconsin cases seemed to apply a State- devised test for this purpose, it can only be said that the decisions were wrong. "State law" may, however, determine what constitutes a navigable body of water for other purposes. While it seems well established in Wisconsin that private riparian rights may attach to streams whether they are navigable or nonnavigable,5 what is more important, public rights ( a "trust" doctrine approach) 6 attach only to navigable streams or lakes, as defined by State court decisions. The definition in Wisconsin is extraordinarily broad as compared with the Federal test of navigability mentioned above. For public uses, any stream is navigable in fact "which is capable of floating any boat, skiff or canoe, of the shallowest draft used for recrea- tional purposes." 7 Public rights include a broad spectrum of uses, and a perennial problem is whether, or the extent to which, certain private rights will be permitted to infringe upon the traditional public uses of water.8 C. RIPARIAN RIGHTS AND WATER USE PERMITS Although some Wisconsin cases have talked in terms of the "nat- ural flow theory" in disputes between riparians, the State now seems to be committed to the "reasonable use" theory, under which the permissibility of each riparian use is judged on an ad hoc basis under the peculiar circumstances of the case. While this may give riparians little security in established uses, the doctrine remains the cornerstone of Wisconsin water law. To an indefinable extent, these riparian rights are limited by a few water permit statutes, to be discussed shortly. 2. State Organizational Structure for Water Administration and Control 2.1 Administration of Water Rights2 Prior to 1967, several State agencies exercised regulatory functions in the State's water resources program. At that time, most of these functions were transferred to the new department of natural re- sources, which is under the direction and supervision of a natural * See B. Bade, Title, Points and Lines in Lakes and Streams, 24 Minn. L. Rev. 305 (1940). B See Ellis et al., note 2, at 33. a The Wisconsin cases are discussed In J. Sax, The Public Trust Doctrine, 68 Mich. L. Rev. 473, 509-23 (1970). See also Waite, Public Rights to Use and Have Access to Navigable Waters, 1958 Wis. L. Rev. 335 ; Walte, The Dilemma of Water Recreation and a Suggested Solution, 1958 Wls. L. Rev. 542. 7Muench v. Public Service Comm'n, 261 Wls. 492, 53 N.W. 2d 514, 519 (1952). 8 See, e.g., Milwaukee v. State, 193 Wls. 423, 214 N.W. 820 (1927) where the court approved a grant of harbor property to a steel company since only a "trifling" inter- ference with navigation was involved. In State v. Public Service Comm'n, 275 Wls. 112, 81 N.W. 2d 71 (1957), a city was permitted to fill in a portion of a lake for a park despite the assertion that it interfered with the public's right to fish. 8 Ellis, note 2, at 193-203. |
